Appeal No. 2001-2217
Application 09/358,532
the subject matter recited in claim 1, albeit not for the reasons
expressed by the examiner. Although Hale describes a single
slipper having an insert or stiffening means 6, a person of
ordinary skill in the art surely would have appreciated that
slippers of the sort disclosed by Hale are conventionally
intended, as are most elements of footwear, to be used in pairs.
A pair of Hale’s slippers would include two inserts or stiffening
means 6. Given the symmetrical configuration of the stiffening
means (see Figure 5), each would be adapted to be positioned
within the aperture means embodied by one of the slippers as
recited in claim 1. Hence, the two inserts embodied by the pair
of slippers which would have been suggested by Hale respond to
the “plurality of inserts” limitation recited in claim 1. This
limitation does not require the inserts to be different.
In light of the foregoing, we shall sustain the standing 35
U.S.C. § 103(a) rejection of claim 1, but not the standing 35
U.S.C. § 103(a) rejection of claims 2 through 8. As our
rationale with regard to claim 1 differs from that espoused by
the examiner, we hereby designate our action in sustaining the
rejection of this claim as a new ground of rejection pursuant to
37 CFR § 1.196(b) to afford the appellant a fair opportunity to
react thereto.
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